Mrs. Eunice Aguocha V. Madam Elechi Aguocha (1986)

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COKER, J.S.C.

This appeal was dismissed on the 11th June 1986 after counsel for both parties had addressed the court after a careful reading of their respective briefs of argument and the record of the proceedings of the two lower Courts, I now give my reasons for the decision.

The parties in the proceedings are members of the same family. The Plaintiff (Respondent before this Court) is the mother of one Victor Ihuese Aguocha. He died on 26th November 1971 leaving a Will dated 26th November 1971 in which defendant, one of his two widows, was appointed sole executrix and trustee of his estate, a large proportion of which consists of houses in Kaduna town.

In his said Will, he made provisions that his aged mother that is, the plaintiff, and some other dependants be maintained by the sole executrix and trustee of the Will. The cause of action before the Kaduna State High Court was that since the death of the testator in December 1971 and, until the time of the filing of the suit in February 1983, the defendant failed to carry out the provision to maintain the plaintiff in any shape or form whatsoever.

She pleaded and gave particulars in the statement of claim of how she spent on the average a total sum of N310.00 per month since the death of her son, the testator. The amount due and payable to her for the period from December 1971 until June 1983 amounted to N42,793.80 and that was what she claimed. In addition, she sought for an order that so long as defendant remained the executrix and trustee of the said Will, she should continue to pay her the maintenance until her death at the rate of N310.00 per month. The defendant’s defence as contained in paragraphs 3, 4 and 5 of the statement of defence reads:-

“3. The Defendant denies paragraphs 9, 10 and 11 of the Statement of Claim and avers that the will gives by its terms absolute discretion to the Defendant in regard to the maintenance of the Plaintiff.

4. The Defendant further avers that she has been providing maintenance for the Plaintiff in the following manner:-

(a) Provision of beverages for the plaintiff.

(b) Provision of food items such as meat, rice, beans etc. for the Plaintiff.

(c) Provision of toiletries for the Plaintiff.

(d) Periodic repairs and renovations of the Plaintiffs house and building a toilet for the Plaintiff.

(e) The Defendant pleads that the Plaintiff is not entitled to the amount claimed in paragraphs 11 and 12 or any amount at all as a right under the Will.”

With the pleadings settled, the issue for trial was not whether the sum of N310.00 by the plaintiff claimed by plaintiff monthly was excessive and unreasonable having regard to the resources of the estate. The defence was that on the correct construction of the Will there was no duty imposed to maintain the plaintiff, as the defendant had absolute discretion, whether or not to carry out the wish of the testator. That she had, in addition, absolute discretion regarding the nature, form and quantum of what maintenance to provide.

It is trite law that parties are bound by their pleadings and any evidence given at the trial not pleaded go to no issue. See Ramanu Atalagbe v. Karede Olayemi Sharum (1985) 4 S.C. 250 p. 265. The principle was also restated in the case that in order to raise an issue of fact by the defence, the material and essential allegations in the statement of claim should specifically be traversed. It is not sufficient that the Statement of defence contains a general traverse.

At the trial, the evidence of the plaintiff was taken at ANAOGWUGWU Village in Imo State on commission by the Principal Registrar of the Kaduna State High Court. Although the parties and their counsel were aware and notified of the place and time of taking her evidence, the defendant and her counsel refused to attend. Consequently, plaintiff was not cross-examined.